Last quarter, John Caravella was invited to speak at the AIA Contract Documents Workshop where he was able to share his knowledge about Construction Contract Interpretation and Fundamentals. In this specific article, we discuss the document types between different parties, to ensure the correct contract is being utilized for your specific type of work.

A101-2017 Standard Form of Agreement Between Owner and Contractor (Stipulated Sum)

• Form of contract between owner and prime contractor; used where parties agree to a flat contract sum while providing for the possibility of additions and deductions by change order.

(Changes from the Previous Form)

• New § 4.5 and 4.6 allow parties to provide for liquidated damages and bonus or incentives;
• New §§ 5.1.7.1.1., and 5.1.7.3. allow parties to exclude certain items from retainage and to reduce or limit retainage; and
• New §§ 8.6 provides for notices by electronic means as agreed by the parties.

A102-2017 Standard Form of Agreement Between Owner and Contractor (Cost Plus Fee with GMP)

• Form of contract between owner and prime contractor; used where parties agree to a contract sum based upon cost and the contractor’s fees (i.e. as a percentage of cost, fixed sum, etc.).
• Contains specific lists of “costs” allowed as part of the contract sum and “costs” which are excluded from the contract sum.

(Changes from the Pervious Form)

• Omits many provisions with respect to time being “of the essence” in completion;
• Provides more detailed provisions for setting retainage and excluding certain items from retainage not present in previous A102-2017; and
• New § 15.6 provides for notices by electronic means as agreed by the parties.

B101-2017 Standard Form of Agreement Between Owner and Architect

• Sets forth separately the contract between owner and architect where architect will both design project and manage construction.

(Changes from the Previous Form)

• New § 1.1.6 et seq. allow for the owner to incorporate Sustainability Objectives for the project;
• New § 4.8 requires the owner to include the architect on all communications with the contractor which may affect the architect’s provision of services;
• New § 5.7 provides for the architect to be paid for redesign services, if necessary because costs as designed exceed the lowest bid or negotiated proposal, provided issue is due to market conditions architect could not anticipate (otherwise, architect is unpaid for such redesign as provided in previous form);

(Changes from the Previous Form (Part Two) )

• Revised § 6.1 allows parties to choose whether architect will be paid a stipulated sum, as a percentage of the budget for the cost of the work, or another method to be decided between the parties; and
• Revised § 6.6 clarifies method for calculating percentage payments.

 

A133-2009 Standard Form of Agreement Between Owner and Construction Manager Where Construction Manager is Also Constructor

• Form of contract used between owner and contractor where contractor will act as construction manager, and where project sum is cost-plus arrangement with a guaranteed maximum price.
• Construction manager’s responsibilities include maintaining a project schedule, working with architect to estimate costs of the project and develop the Guaranteed Maximum Price, and contract administration including soliciting bids from subcontractors and monitoring the ongoing progress and costs of the project.
• Contains specific lists of “costs” allowed as part of the contract sum and “costs” which are excluded from the contract sum.

A141-2014 Standard Form of Agreement Between Owner and Design Builder

• Form of contract used where owner contracts with one entity to both design and build the project.
• Requires design-builder to have all work performed through licensed individuals (i.e., if design-builder is a contractor, it must use the service of a licensed architect to prepare design).
• Makes the design-builder liable to the owner for acts and / or omissions of persons and / or entities used by the design-builder to design and perform the project work.

A401-2017 Standard Form of Agreement Between Contractor and Subcontractor

• Form of contract used by prime contractor where hiring subcontractors to complete portions of the project worked.

(Changes from the Previous Form)

• Clarifies whether references to “modifications” refer to a modification of the prime contract or a modification of the subcontract;
• New § 3.3.5 requires the contractor to promptly notify the subcontractor of any fault or defect in the subcontractor’s work (i.e. so that the subcontractor can more quickly address the defect and avoid project delays);
• Revised § 3.5 allows contractor to remedy subcontractor’s defective work with its own forces and withhold the reasonable cost of the corrections from payments to the subcontractor without a written modification (previous form allowed this with a written modification requiring he subcontractor’s agreement);

(Changes from the Previous Form (Part Two) )

• New § 11.1.10 requires subcontractor to indemnify contractor and owner for any lien and payment claims of subcontractor’s subcontractors and suppliers, provided contractor has fulfilled payment obligations under the subcontract; and
• Revises § 14.4 requires all notices to be in writing buy allows for notice to be served by electronic transmission in addition to traditional means.

C401-2017 Standard Form of Agreement Between Architect and Consultant

• Form of contract used by architect when consulting with other persons or entities, for example, mechanical, electrical or structural engineering services or other architects.

(Changes from Previous Form)

• Revised §§ 8.1.2 and 8.1.3 require the architect and consultant to indemnify each other for claims brought by third parties due to the other’s negligent acts or omissions but clarify that this indemnification does not include a duty to defend.

John Caravella Esq., is a construction attorney and formerly practicing project architect at The Law Office of John Caravella, P.C., representing architects, engineers, contractors, subcontractors, and owners in all phases of contract preparation, litigation, and arbitration across New York and Florida. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached online or by email: John@LIConstructionLaw.com or (631) 608-1346.This is a general information article and should not be construed as legal advice or a legal opinion. The content above has been edited for conciseness and additional relevant points are omitted for space constraints. Readers are encouraged to seek counsel from a construction lawyer who has experience with Long Island construction law for advice on a particular circumstance.